Tuesday, March 31, 2020


Texas, going backwards

As people who have been following this blog well know, I'm very concerned about the impact of COVID-19 in prisons. I hope I'm wrong, but it does seem that the danger is very real of a disastrous outbreak, based on the nature of this disease and the conditions inherent to incarceration.

Some states are taking strong pro-active measures. New York, for example, has announced some releases. Texas, meanwhile is going in the other direction. My former student David Moore sent me a link to an order signed by Texas Governor Greg Abbott, which you can read here. Rather than expand releases, it restricts the ability of local officials and wardens from releasing prisoners who are categorized as "violent offenders."

There is a natural appeal to that, but the problem is that the order is terribly over-broad. We apply the label of "violent offender" to many people whose crime did not involve violence, for example. And some people convicted of violent offenses have proven themselves over years or decades to have been rehabilitated (it is possible, after all).

We'll see what happens next...

Monday, March 30, 2020


In today's Star-Tribune

I wrote this new piece about COVID-19 and prisons at the end of last week. It may already be too late. The danger is very real.


Inventive haiku

Wow! You guys knocked it out with inventiveness with your haiku about... inventiveness.

We go this one from John Willome, which I had to think about for a minute, and then it sunk in:

Air conditioning
Political power shift
To the southern states.

And this from Jill Scoggins:

What is the best thing
God ever invented? Why,
grandchildren, of course!

IPLawGuy had this (which I liked a lot, and agree with):

Thomas Edison
Boyhood hero, still admired
Would love to create.

And Christine had this bit of honest humility:

Always so in awe
of people who can invent
not how my brain works.

Sunday, March 29, 2020


Sunday Reflection: Good Night, Rory

Since we have all been driven inside, a few of us here had a short-story writing confab, where we each wrote a story about a piece of art we knew. This was my contribution. I would like to emphasize that it is a work of fiction, and does not involve me or anyone I know (though the painting is real).

Good Night, Rory
By Mark Osler

         By the third kid, you pretty much have bedtime down. It's all about routine, each act imbued with symbolism and importance, a Kabuki theater between generations. It was just me and Rory at home-- my wife Ellen had gone to be with her parents along with Lara and Jay-- and that meant the performance was all on me.

         First came the bargaining. He was lounging at the other end of the couch in his jammies with the feet in them, reading a book that was making him laugh. I loved the sound of it, this bit of unbridled joy, and let him go for a while before I made the opening offer.

         "Five minutes?"

         He looked up and lowered his eyes in a show of seriousness. "Twenty minutes," he said deliberatively. He knew the game.

         "Ten?" I countered.

         Like a car salesman getting close, he thought for it a bit. "Fifteen!"

         We settled on twelve (there was a pattern to this), and I set my watch. I pretended to read, but I just watched him, really. He was like his mother and brother: when he read he was totally engaged, nodding occasionally and issuing that laugh every other page. 

         When the alarm went off we headed up the stairs. I would be slightly behind him, acting like I was going to trip him, and he backed his way up warily while issuing threats. When we got to the top, he ran to the bed, jumped in, located his rabbit, Pierre, and pulled the covers up before looking up expectantly. 

         It was my turn to perform. "I would like to tell you a story with your characters included!" I announced in a formal voice, as tradition required. In response, he named his characters (Pierre the rabbit and Spiderman), and I began the tale, in which Pierre got tangled up in one of Spiderman's webs, sued him for damages, and won a carrot.  It seemed to work. The contracts' goals were achieved, and I closed the door to Rory's room softly as I left. 

         Talking to Rory always settled my mind, even when things were hard. Ellen and I had decided before our first, Lara, was born that we were never going to use baby-talk; we were going to talk to our children the way we talked to each other. Rory's patter showed it, too-- other than calling Ellen "Mommy," and the high little-pitched voice, he spoke like an adult.

         But now I was alone. I thought about turning on the TV for a bit, but I was worn out from a long day of work. Lately, I've been working from home, but that somehow makes me more tired than when I commuted in to school. And the world is more wearying than it used to be, of course.

         Sleep comes fast, but not for long. I hear Rory's whispers close to my ear, urgent and scared. "Dad, there's someone in the house."

         It's one of those things that a kid can say that makes your heart speed up. I pulled him into the bedroom and closed the door. There are two big French doors with a flimsy slide lock between then, painted white. I motioned to him to sit down with me next to the bed and to be quiet, my finger against my lips. He nodded, shaking a little.

         We live in an old house, and old houses make noises-- especially at night, for some reason.  We sat there for a bit, and my heart calmed, at least until I heard the noise. It was a creak from the first floor. It might have been the house, but it was hard not to imagine a footstep. Since I started working from home, I've wasted way too much time on nextdoor.com, a website where people report various local indignities and scandals. And there was a break-in a few blocks away, on Halifax. The homeowner, a cranky-looking woman identified as Betsy1958, had heard a noise, come downstairs, and found a man running out her front door with three bags of rice, toilet paper, and a computer. These days, the toilet paper was probably worth more than the computer.

         Was this the same noise? I sat and wondered, and then I heard it again, the creak.  Rory urgently whispered "See?" I nodded.

         There was nothing to reach for in the bedroom-- no gun, no bat or mace. My phone was on a charger downstairs by the back door. I was in my pajama bottoms and a t-shirt from one of Ellen's races that featured a heart; it wasn't an intimidating look. But something in me wanted to go downstairs and confront whoever it might be.

         I leaned over and whispered in Rory's ear: "Stay here! Don't move." Then I slowly slipped the door open. Slowly, but not quietly; the door was hung too low for the high carpet, and it made a "Shhhh" noise whenever it was opened. I grimaced at the noise and moved through the door on the balls of my feet. Glancing down the stairs, I didn't see a light on. 

         Slowly, my feet feeling their way, I crept down the stairs when I heard the noise again and stopped, frozen. Where was this guy? The kitchen? The mud room? What would he want to take from the mud room?  That's when I realized that Rory was behind me, at the top of the stairs. "I'm scared!" he whispered. I turned and motioned with both hands for him to go back to my bedroom, panic setting in. I should have stayed with him. 

         Creeping to the bottom of the stairs, I turned each way, looking. That's when I saw what was gone: the painting over the fireplace. 

         It was an abstract by my father, with deep smoky lines at the bottom and dark shades of brown and red at the top, and about 7/8ths of the way up there is a slash of white and blue that was like glimpsing God-rays and hope through a glass, darkly.  It was my favorite painting because it was the closest I had ever come across where a work of art truly represented an emotion.

         The space where it had been emboldened me. I stopped creeping and walked around the corner, through the dining room, into the kitchen. There was no one. I turned on the light in the living room. Nothing. 

         He was gone, probably. I went to the stairs and looked up. Rory had taken my advice and was gone from them.  I checked to make sure the front door was locked and walked back up the stairs. Halfway up, I realized that I had not looked in the mud room, behind the door by the fish tank. But now I wanted to see Rory. 

         I reached the top of the stairs. The bedroom door was closed again. Pushing on it, I could feel that the slide lock had been closed.

         Something about that terrified me. I knocked on the door. "Rory? Unlock the door, ok?"

         I heard the bar slide over, and the door opened. There was Rory, crying. He had a way of crying where he started silently and slowly built up to wracking sobs. It broke my heart every time. I knew the trick was to distract him, so I began to head-butt him while making a cow noise. It worked, for a moment. He pushed back at my head with both little hands and said "Stop it!"

         I did, and we both sat there in the dark, quietly. After a minute he asked "Did they take anything?"

         I shrugged. "That painting over the fireplace is gone."

         He didn't say anything right away. When he did his voice was trembling. "Dad, you took that down."

         I was thunderstruck. Maybe I had; things had become a little fuzzy in my memory since things started getting weird, so many people getting sick, the hospitals overwhelmed. 

         "You took it down when Mommy and Lara and Jay went to be with Grammy and Grand-dad in Heaven."

         I had. He was right. I had been mad when I did it, mad at God and the world, and I had taken the painting down and put it behind a door. It was too hard to see. If there had been someplace deeper to hide it, a hole bored into the earth, I would have put it there.

         I began to shake a little.

         Rory moved next to me and put his arm around me. Kids do that; they can tell. As his body moved next to mine, it felt a little... off. Something was wrong. 

         I pushed the sleeve of my pajamas up, and pressed the front of my wrist to his forehead.

          He was warm.

Saturday, March 28, 2020


Back in the day...

When I was a kid, this was the funniest thing I had ever seen:

Friday, March 27, 2020


Haiku Friday: Inventions

Now that everyone is running around building improvised medical ventilators, it's a good time to consider the role of invention in our lives. Pictured above, for example, is a device my dad rigged up for Osler Island to convey things from the dock up to the cabin. 

It can be an informal invention, or something we all know-- go to town with it! Here, I will go first:

Nineteen seventies-
Someone actually invented
Crack cocaine. But who?

Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun.

Thursday, March 26, 2020


PMT: The coming tragedy in prisons and jails

People in prisons and jails are at particular risk for the spread of any contagious disease, and COVID-19 is no exception. That means that unless drastic measures are taken, thousands of incarcerated people may die unnecessarily. For President Trump and state governors, one of those drastic measures should be to immediately grant commutations to elderly prisoners and those who are otherwise vulnerable. If ever there was a time to lay aside our sense of retribution and choose mercy, this is it.

It’s no secret that prisons are difficult places during a pandemic. Many people are jammed together in small spaces, and overcrowding can easily make six-foot distancing impossible.  Normal cleaning procedures are hindered by restrictions on the possession of alcohol-based cleaning solutions and hand sanitizer, and even cleaning rags may be limited. The limited medical facilities in prisons and jails can be quickly overwhelmed. The “solution” in some places might be to isolate the most vulnerable in solitary confinement, but even that cruelty will not be effective if significant parts of a jail or prison population contract the virus.

Certainly, clemency can only be one part of a greater effort. It must be combined with other measures, including a beefing-up of staff to clean and care for the sick, and the better provision of cleaning and medical materials and resources. Just as importantly,  we need to minimize arrests and detentions, and fully utilize the release measures embedded in the First Step Act and other statutes that can allow for release of prisoners. 

But none of those population-limiting measures could be as fast and effective as clemency. All that clemency requires is a stroke of the pen; there is no need to go to court. 

Some, of course, will fear that such an effort will flood the streets with dangerous offenders. The truth is that the target of medical clemency will typically be an elderly man or woman who has served decades in prison. Public safety can be preserved by two simple measures. First, candidates should be screened for recent behavior in prison, to ensure that those with dangerous impulses remain behind bars. Second, those who are released should be required to self-quarantine for two weeks after release, to ensure that they don’t carry the virus back to their communities.

Governors (and clemency boards, in some states) can approach this in ways appropriate to their state systems. The federal clemency system, which is especially messy, needs concerted attention. President Trump should for now set aside his current approach to clemency and empanel a small group of experts to quickly get him the names of those best suited to medical clemency. It is essential that such a group work outside of the Department of Justice, which has a long history of sabotaging and delaying this kind of effort. At the same time, Trump should mandate that the Bureau of Prisons cooperate with that group in providing data and access to records.

It would be a simple task, set out in an executive order. President Trump, having defined himself as a “wartime president,” knows that bold action is needed. One of those bold actions, medical clemency, can prevent or slow a true calamity within the bars, fences and walls of our prisons.

Wednesday, March 25, 2020


Yale Law '90: Peter Berkowitz

I'm devoting Wednesdays on the blog to profiling my intriguing classmates in the Yale Law class of 1990. It has been quite a voyage of discovery!

People often assume that Yale Law is a bastion of liberalism, but the reality is that many influential conservatives (beyond Brett Kavanaugh) come from the school. For some of them, it was pretty easy to see when we were in school, others less so. Over time, too, I have found myself collaborating with some of them on projects where our interests overlap. It is odd, though, that conservatives condemn the school as liberal even while so many of their most successful fellow travelers (including representatives of very different strands of conservatism, such as John Bolton and Pat Robertson) were formed by the place.

Peter Berkowitz is one of those conservative Yale Law grads; he currently serves as the Director of Policy Planning under Secretary of State Mike Pompeo.

Berkowitz came to Yale Law from undergrad at Swarthmore and after obtaining a Masters in Philosophy from the Hebrew University in Jerusalem. In 1990 he not only got a JD from Yale but a Ph.D. in Political Science from the University (which is pretty impressive-- I can't imagine doing both at the same time).  He went straight from Yale to Harvard, where he taught in the Government Department until 1999.

From there, he transitioned to teaching at George Mason's law school (now named after Justice Scalia), where he taught until 2007.

At that point, he headed west and became a Senior Fellow at Stanford's Hoover Institution. From there, he was chosen for his current post at the State Department.

He is a critic of progressive politics and the "social justice agenda," and regularly writes on issues relating to education and political philosophy.

Tuesday, March 24, 2020


In other news...

While everyone was obsessing (appropriately) about COVID-19 yesterday, something pretty remarkable happened in Colorado-- it became the 22nd state in the union to free itself from the death penalty, and Governor Jared Polis (pictured above) commuted the death sentences of the three men on the state's death row. 

For a while, people hoped that the death penalty would be swept away in a dramatic Supreme Court ruling (and it was, in fact, in 1972, but that proved temporary). Instead, though, it is fading away, dying of a thousand cuts, including fiscal prudence, the problem of innocent people exonerated from death row, and flagging support among citizens who don't see the point anymore.

Once a majority of the states reject the practice, that dramatic moment in the Supreme Court may come. But the slog to get there has been long and hard.

Monday, March 23, 2020


Outdoors haiku

Nice work! If we have to live online, this is the way to do it.

We had this gem from poet Megan Willome:

Dog walk before dawn,
a woman with her dog calls,
"Good morning! Be well!"

And Christine gave us this:

Week in the garden
Talking to my plants; green thumb...
Best isolation.

Susan Stabile (who knows the ways of the woods) offered this:

I don't need too much--
Some sunshine, trees, and some grass.
A long walk soothes me.

And finally we received a long missive from Quang Cao Dai Phat, which included this (translated from the original Vietnamese):

This type of table
Material always makes
Shiny over time.

Sunday, March 22, 2020


Sunday Reflection: Virtual Church

I'm struggling.

I have connected with the internet via this blog every day since 2006, but I'm not someone who can sustain himself online. I'm an introvert, but I need to be in a society with people I can see and talk to and respond with to something that is funny or sad or thrilling.

As a teacher, I feed off of the energy of my students. I love to look out at the class and see who is engaged, who is upset by a rule or outcome, who is almost asleep. One of my favorite moments in class was when I explained the federal practice of relevant conduct, which allows someone to be sentenced for conduct that they had been acquitted of by a jury. Sara Sommervold threw both hands straight up over her head like Kermit the Frog and said "no!" That's a moment that comes when you see people and feel their mood.

Now I wear a headset like some kind of unlicensed helicopter pilot and speak into the void while glimpsing at tiny, almost indiscernible, moving pictures of my students. I am doing my best. It is not the same.

I'm doing it not just because we must, but because it is the right thing to do for those who are most vulnerable. I get that, and agree with it.

But there is a cost. And that will become more apparent as time goes on.

Churches are dealing with this challenge in a number of ways. Well, not a big number-- maybe two or three ways, actually. Most of them are having some kind of online service, where the minister will be in his office or her pulpit, alone.  Congregants are encouraged to sing along at home. It's kind of depressing. We were asked, after all, to gather in his name.

But, right now, we can't.  That is one of the costs of all this. In the end, I suspect that the social, spiritual, and economic costs of the pandemic will be all intermingled. Churches will close not just because they are no longer economically viable, but because they are no longer spiritually viable-- they will not be able to minister to those in need when that need is greatest. People will die alone, drift from faith, and despair.

Our fight must be against that, too.

Saturday, March 21, 2020


Guess he was right!

In 2015, Bill Gates described what needed to be done to prepare for a likely pandemic. And... we didn't do it. 

Friday, March 20, 2020


Haiku Friday: Going outside

With so many indoor activities (movies, museums, shows, restaurants, gyms, bars, stores) closed for Coronavirus season, a lot of people are rediscovering the outdoors. Of course, not every outdoor activity is available-- the picture above was taken on my trip with IPLawGuy to Whistler last week, shortly before it closed for the season-- but no one is closing down the walking paths, the bike trails, or the woods.

So let's haiku about that this week-- the adventurous (alone or in small groups) that can take us into the great outdoors. Here, I will go first:

Lake Harriett calls
Ice is thinning, snow recedes
She invites us near.

Now it is your turn! Just use the 5/7/5 syllable pattern and have some fun...

Thursday, March 19, 2020


Political Mayhem Thursday: What happens next?

So, a lot has happened in the last week!  Schools closed, businesses shut down, restaurants locked up, and gyms went quiet. Even churches are dark. It is a very strange time.

So what happens next?

Here are a few thoughts on that:

1) This is going to reshape the retail market, and we are going to lose a lot of stores, big and small. Sure, we can order stuff online, but there is a real loss when local retailers close down. They are often community hubs, the places where we see one another.

2)  The federal government seems committed to a trillion-dollar stimulus package, much of it going to large corporations. I have mixed feelings about this. I see the necessity for a stimulus, but as I argued in 2008-2009, debt matters, too. We already are running a trillion-dollar annual debt under the Trump administration, and doubling that isn't sustainable. There will be long-term and short-term problems. The long-term problem is that debt service will become a more significant part of our federal budget. The short-term problem is that there will be political demands to reduce debt when this crisis fades, and that can come from the military, social security/Medicare/or everything else (Courts, transportation, housing, etc).

3)  The coronavirus itself is the biggest threat. I am starting to see something on my Twitter feed that I have feared: people reporting that people they knew died of Covid-19.  That's a threshold. But how bad it gets from here is the real unknown.

4) Our social networks are going to change, and the longer isolation continues, the more it will change. I predict we are going to see underground societies develop, some of them based on in-person human interaction that is otherwise verboten. And out of those underground societies (online and in person), we may see new forms of art, music, and theater develop. New York will be the epicenter of this-- people there will not be able to stay holed up in small apartments.

For now, the best we can do is watch out for each other and do our jobs the best we can.

Wednesday, March 18, 2020


Yale Law '90: Michael Caglioti

I have been devoting Wednesdays (mostly) to profiling my classmates in the Yale Law class of 1990 (you can see a partial recap with links here). It has been a fascinating project; they have gone on to do some remarkable things.

Michael Caglioti was yet another memorable member of the class of 1990. He came to Yale six years after graduating as the valedictorian from Iona College in his hometown of New Rochelle, New York. Then-- and before matriculation at Yale Law-- he received two Masters degrees from Princeton: one in Public Affairs and another in Politics.  At Yale, he served with me as a Senior Editor of the Law Journal, and (unlike me) was also an officer on another journal, the Yale Journal of International Law.

After law school, he moved to DC and joined one of America's leading firms, Arnold and Porter. He became a partner there in 1998, having proven himself working on a variety of international cases for leading corporations. It's the kind of partnership many lawyers dream of and relatively few achieve.

To explain what happened next, I have to reveal something about Michael that never stopped him from making all of this happen: Michael had a severe neuromuscular disease, spinal muscular atrophy. He was never able to walk, and utilized a motorized wheelchair.

That wheelchair, unfortunately, was the source of the undoing of what Michael had worked so hard to achieve. In 2000, just a few years after he made partner, the wheelchair malfunctioned and he was badly hurt (he describes this himself in an essay in the Washington Lawyer, which you can read here).   Because of his injuries, he had to leave the partnership he had earned and incurred over $500,000 in medical expenses.  It sounds like a very sad turning point in his life.

Michael died on January 4, 2018.

Those of you who have followed these profiles know that usually I run a current photo with the profile, and sometimes a video. I couldn't find a picture online of Michael; even the essay he authored was accompanied only by a photo of a wheelchair. In a way that is fitting, I suppose. He was a person defined by his remarkable mind and spirit, and perhaps the memory of that should be enough.

Tuesday, March 17, 2020


The Turn

Yesterday, the Governor of Minnesota, Tim Walz, closed pretty much everything worth going to: restaurants, bars, gyms, theaters, churches, and pretty much every other place that people gather. He was following the lead of others across the country in doing so.

On my way home from work yesterday I stopped at Costco to pick up a few things--olive oil, parmesan cheese--and it was there that I realized that we have reached The Turn where things get real. They were out of chicken in any form. They were out of pretty much everything made of paper. There was no... well, they were out of a lot of stuff.

That was the end of a day that also included teaching my first lecture class on Zoom, where I'm looking at a screen and seeing tiny little pictures of my students. It didn't go great-- I'll be honest. I'm a person who feeds off the mood of my students, who relishes the give-and-take of a courtroom or lively classroom. I need to read a room. Perhaps I will get used to this, but it will be an uphill struggle.

And, of course, I have it good. I have a job where I can at least try to do it well in these circumstances.  The people who are really suffering are the less affluent, especially those in the gig economy. There are going to be deep and enduring tragedies that come out of this, breaks in family trees and sad stories that are alluded to years later.

I suspect that in the coming weeks we are going to have to build new and different social structures. I don't know what that will look like-- after all, one week ago I was out at Whistler skiing with IPLawGuy, never imagining what the next week would hold.

Monday, March 16, 2020


Coping haiku

Another good week! I loved this one from my dad:

I am a good host
but I am shutting the door
on new viral guests.

And Christine chimed in with her method:

Social distancing
14 acres,spring gardens
7 yards of mulch.

As did Jill Scoggins, with some great advice:

Distance between us?
If we must. But let us still
act with love's kindness.

Sunday, March 15, 2020


Sunday Reflection: The Healer

It's a strange time.

Our routines, big and small, are disrupted. If you were in school, now you aren't; those who were going to travel won't, and those who were going to not travel must.  There is something scary out there that we cannot see, and we have no leader to tell us hard truths.

You know those days we remember? These are those days.

No March Madness. No college graduation. No church service. No classroom. No good in the frozen vegetable section of the store. No planes, no late night shows, no museums or auto shows or operas. Who are we now?

We are what we can be at our best. We can love one another, sacrifice for others, we can be kind to those we draw near or who cross our path.

It will probably get worse before it gets better, but hopefully we will all be better, too. We don't have  a leader, but we can have many leaders. And I suspect we will.

Is blues the healer? For some people, maybe. But for others, it will be something else. One of the hardest parts of this crisis is that a lot of people are going to be separated from the things they usually count on in times of crisis. There are some, of course, for whom that comfort comes in the moment that they receive the bread and drink the wine, and that will be held away from them. How deep a tragedy is that?

Saturday, March 14, 2020


Kinda mesmerizing

Friday, March 13, 2020


Haiku Friday: Social distancing

No, I'm not retreating to remote Osler Island (pictured above)-- that would be a little too extreme. But it was announced yesterday that my school is going online for a month (at least), and all kinds of events have been canceled. The coronavirus is forcing us into new ways of being. So let's haiku about that this week. Last week was a general coronovirus theme, but this week lets talk specifically about how we are adapting.

Here, I will go first:

Came back from skiing
And found coronavirus
Had shaken my world.

Now it is your turn! Just use the 5/7/5 syllable pattern, and have some fun!

Thursday, March 12, 2020


PMT: Movements v. Coalitions

IPLawGuy sent me this fascinating article by Jonathon V. Last, which contrasts politicians who build coalitions (Obama, Reagan) with those who lead movements (Trump, Sanders). Here is the meat of the analysis:

Joe Biden sits at the head of a very broad coalition. It is similar to the coalition Barack Obama assembled—and keep in mind, Obama got more votes than anyone to ever run for president. The most substantial difference is that hat Biden has traded some progressive voters for some blue-collar whites. We do not yet know the net effect of this transaction, but I suspect it will be in his favor.
Trump does not have a coalition. He has a movement. His movement was enough to win in. a multi-polar primary field with a mere plurality of the vote and then to attain a perfect-storm victory  against a very bad general election candidate. But once in office, Trump declined to turn his movement into a coalition: His every action has pushed marginal supporters away while cementing his relationship with the voters already in his movement.
In the short term, this served him well: Had Trump not bound his base more tightly to him, he might not have survived impeachment.
But in the long term, it has made him extremely vulnerable in his reelection campaign. His best hope had been to match up against a Democrat who, like him, had only a movement. That’s why he was desperate to avoid Biden and draw either Elizabeth Warren or Bernie Sanders.
And now that he has to face Biden, I do not see how Trump builds a coalition at this late date.
Biden already commands the support of African-Americans, college-educated professionals, and suburban women. He is going to spend the next eight months eating into Trump’s margins with blue-collar whites while college-educated whites continue to flee the Republican party of their own accord.
It's hard to disagree with that. Later on, Last also makes a point that I keep conveying to people-- that President Trump won the narrowest of victories, and the idea that he will be difficult to defeat is ludicrous. I'm not saying the Democrats will win the White House-- they have a tendency to mess that up (see 2016)-- just that a decent candidate building a decent coalition should be able to get there.

The reason is rooted in Trump's constant play to his base; that is, the base of his movement. It alienates some people, who seem to be pushed into a Biden coalition.

That said, in my own field of study it is clear that Trump is making a play to African Americans by promoting his efforts-- well, effort (it is pretty much just the First Step Act)-- in reforming criminal justice. Sadly, Biden is vulnerable to that, since he pushed the 100-1 ratio between crack and powder, a raft of mandatory minimums, and tough sanctions on MDMA, among other things. And Biden has no real plan to address criminal justice going forward, other than a softer approach to marijuana, spending lots of money, and variations on "what Obama did"-- and that is no plan at all.

Wednesday, March 11, 2020


YLS '90: Heathcliff

I have been devoting Wednesdays here at the blog to profiling my classmates in the Yale Law School class of 1990. This week we meet Heathcliff.

There were a lot of characters in our class, but few were as memorable as Heathcliff. He was unique in that he had a parent who was formerly incarcerated, which allowed for insights few of the rest of us could offer. He was definitely an out-of-the-box thinker who often had provocative ideas in class. Also, he was a cat. And had a flame-throwing gravy robot.

Heathcliff came to Yale Law fresh out of Yale College, where he lived in Stiles College and wrote for the sports section of the Yale Daily News. At the law school, he was Notes Editor for the Law Journal and active in the Federalist Society.

After law school, Heathcliff clerked on the 3rd Circuit for Judge Stapleton, and then in the Ninth Circuit for Judge Alex Kozinski before a clerkship with Supreme Court Justice Anthony Kennedy.  After that, he worked for Independent Counsel Ken Starr in the investigation into President Clinton.

Then things got kind of weird. Heathcliff moved into a house with an old lady, and got obsessed with ham, gorillas, and apes. He was sometimes seen flying a ham sandwich at the end of a string, and worked somewhere in the Bush administration. He seemed to have some kind of business making and marketing "message helmets." After that, we kind of lost track of him.

So if you know what happened, drop a line.

Tuesday, March 10, 2020


The breakdown

You know, some stuff is going on. Just yesterday, we had these headlines:

-- Stocks on the S & P 500 lost almost 8% of value in one day, the biggest dip in over a decade.

-- Italy locked down the entire country, requiring permission to travel.

-- Several schools, including Stanford, Princeton, Columbia, NYU, and Amherst, canceled in-person classes and shifted to distance learning.

-- Three or more members of Congress (reports vary) are in self-quarantine.

-- A dispute over production limits between Saudi Arabia and Russia led to a crash in oil prices.

That's a lot of ominous news. It is one of those times when leadership matters to both inspire and create solutions. 

We will see if that leadership emerges.

Monday, March 09, 2020



Coronavirus? More like the Smith-Corona virus, given the number of great poems you submitted! (and yeah, I realize that you have to either be pretty old or some kind of typewriter fan to get that joke).

First of all,  is Gavin in quarantine in a middle school?!?? His haiku made it sound like it:

Fenced in, quarantined
I watch the teens dance in masks
Spirit inspires.

Meanwhile, Christine is prepared:

Past experience
tells me at four days people
will go stir crazy


Thankful for many
acres and outdoor chores
to keep me busy

Set to place my mulch
order. That can occupy
me for sev'ral days

Megan Willome, maybe not yet:

I'm supposed to care
I suppose I will, later--
Sunny dogs nap on

The Medievalist probably has the Coronavirus:

I have a fever,
Ex post facto nasal drip.
Pass the Tylenol.

While Amy has questions:

Pariah cruise ships
Claustrophobic death boats. Stuck
On an airplane, coughing

Seatmates. Usual
lunch spot -- music library--
Too warm with phlegm-y

Undergrads. Outside,
open spaces, brisk air, is
The only place to be.

Meanwhile, IPLawguy perhaps isn't taking the whole thing seriously yet:

Weird Al Yancovich
Lets us down in time of need
Won't do "My Corona"

Sunday, March 08, 2020


Sunday Reflection: The gift of a small audience

I gave two very important talks this week.

The first was on Wednesday, right before I ran for the plane to DC. I teach at a Catholic school, but on Wednesdays at noon we have programming for Protestant students, called "Manna." I really like speaking at Manna, because it is a great way to have a spiritual experience with my students. This Wednesday, I planned to give a very personal and somewhat vulnerable talk about transitions in life. I prepped, gathered my things, and headed for the room.

When I opened the door, I found that there were only four students there. There usually is a much bigger crowd, and I'm not sure what kept the numbers down.

But I did know that it was an opportunity. I love a small audience; you can make eye contact with everyone, read the room, see how they are reacting or feeling. I stepped up a few stairs in the auditorium to be closer to them, so that we were within a few yards of one another. Then I told my story.  I think it was one of the most impactful presentations I have ever given.

There weren't hundreds of people there to hear it. But there were those four, and that means the world. If just one of them, in twenty years, remembers what I said, then it will be worth all that I do.

Then I went to DC, to face another small audience, a subcommittee of the House Judiciary Committee. The hearing room for the House Judiciary Committee is remarkable, was been the site of Robert Mueller's testimony last year. Before that, it was the room where President Ford appeared to defend his pardon of Richard Nixon, and where Nixon's impeachment proceedings took place.

Me and the other three witnesses (Rachel Barkow, Cynthia Roseberry, and Kemba Smith) would have a small audience: the 14 members of that committee, plus the Chair of the Judiciary Committee, Jerry Nadler.

And again, a small audience was good. We could see who was interested and who was not, who wanted to speak and was waiting it out a bit. The hearing went over three hours (with a break for a vote on the floor of the House), so there was a lot to observe.

We fool ourselves when we think that we need a crowd to make change. Sometimes it is in ones and twos, small groups, when you can see formation of thought and emotion.

Saturday, March 07, 2020


1912 all over again?

I was really intrigued by Zachary Wolf's analysis over at CNN comparing the situation now to the presidential race of 1912, when the incumbent, Taft, faced a primary challenge from former president Teddy Roosevelt. Roosevelt lost the nomination at the Republican convention, formed the "Bull Moose" party, ran as an independent, and then both Taft and Roosevelt lost to Woodrow Wilson, the Democrat.

It's not quite the same as now, of course-- for one thing, the incumbent hasn't been challenged for the nomination, and Bernie Sanders is not TR-- but it is sometimes good to remember that this isn't the first time things have been a little crazy.

Friday, March 06, 2020


Haiku Friday: Coronavirus!

Even as it affects the economy, restricts travel, and worms its way into our dreams, there isn't much we can do about the Coronovirus. But we can haiku about it! 

Here, I will go first:

It's deep in our heads
But it is oh so tiny!

Now it is your turn. Just use the 5/7/5 syllable pattern, and have some fun!

Thursday, March 05, 2020


Political Mayhem Thursday: Live Edition!

It was quite a morning (and into the afternoon) testifying in front of the House Judiciary Committee. I think it went pretty well. I was the one witness called by the Republicans, but the three Democratic witnesses were all people I know and respect, including my longtime co-author on clemency issues, Rachel Barkow.

At the start of the hearing, Rep. Nadler quoted something from my written testimony, attributed it to Alexander Hamilton, and then disagreed with it, which has to be a high point of my career in advocacy. And, yes, the musical "Osler!" would be super-boring. 

It evolved into a really good discussion that even veered briefly into Shakespeare (re his themes of mercy).  You can sense the partisan fighting that is endemic to the institution, but that really did not infect the interaction between the witnesses and the members of Congress. Sometimes, I get to hang around on this tiny island of bipartisanship, and that is a pretty awesome place to be.


Political Mayhem Thursday: The Biden surge

I'm reading a lot of the same narrative about the Democratic primaries, which centers on the following:

-- With Beto, Buttigieg, and Klobuchar's support, and Bloomberg's money, Biden now has what it will take to outlast Bernie Sanders and win the nomination.

-- Biden also is looking well-situated to stitch together a coalition of black and suburban voters that would allow him to win the general election.

That may all be true.

What I worry about is the all of this movement has had almost nothing to do with, well, Biden. It has to do with other people (Jim Clyburn, etc.) or shifting attitudes or good timing. But it doesn't seem that Biden has done anything to really spur these events. And that worries me.

Wednesday, March 04, 2020


I was wrong!

You may remember that I predicted not so long ago the the Democratic primary race could be thrown into disarray under the following scenario:

1) Sanders wins New Hampshire  (this proved to be true)
2) Biden wins South Carolina (this also happened)
3) On Super Tuesday, Bloomberg's money would trump all, and he would become the leader. 

I was wrong on that third prediction, and I'm really glad for it.

Upon reflection, I think I made the same mistake many people (including Bloomberg) have made: I over-valued the importance of money in winning elections. After all, Clinton very much outspent Trump in 2016, and we know how that went. Especially in the internet age, a bunch of TV ads probably don't have the impact that they once did. 

And perhaps that is a very good thing.

Tuesday, March 03, 2020


In the news

I'm all in on clemency reform right now. There has been a lot going on at the state level, and we are hoping things might get moving at the federal level as well. I had a piece yesterday about it at The Hill-- you can read that here.

Also, on Thursday I'll be in DC to testify in front of the House Judiciary Committee's subcommittee on the Constitution, Civil Rights and Civil Liberties, which is having a hearing on clemency reform. I'm thrilled that they are going to pay attention to this issue.

The Democrats control the House, of course, and called the hearing. The way it works is that the Democrats get to choose three witnesses, and the Republicans one. I'm the person the Republicans picked, while the Democrats chose my longtime collaborator Rachel Barkow of NYU-- most of what we have each written in this area was co-authored, in fact. So... I guess this really is one area of strong bipartisan cooperation!

Meanwhile, I'm still digesting all the news on the election. My fav, Amy Klobuchar, is out. It makes me kind of sad. But there is a lot left to happen....

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